IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 32828 of 2005(G)
1. V.JAMEELA, D/O.KHADEEJA,
... Petitioner
2. V.ABDULLA HAJI, S/O.KHADEEJA,
3. V.RASHEEDA,
Vs
1. V.SAKEENA, W/O.AHMED KUTTY,
... Respondent
2. V.SAFIYA, D/O.SAKEENA,
3. V.MUHAMMED, S/O.SAKEENA,
4. V.ZAINUDHEEN, S/O.SAKEENA,
5. V.NASEEMA, D/O.SAKEENA,
6. V.ZEENATH, D/O.SAKHEENA,
7. V.SHAMEENA, D/O.SHAKHEENA,
8. V.SAMEER, S/O.SAFIYA,
9. V.SAHEER, S/O.SAFIYA,
10. V.SHAMSEER, S/O.SAFIYA,
11. V.SUHAIRA, D/O.SAFIYA,
12. V.SALEEMA, D/O.SAFIYA(MINOR),
13. SUBINAS, D/O.NASEEMA (MINOR),
14. V.SUHANA, D/O.NASEEMA (MINOR),
15. V.NAFSHEERA, S/O.SEENATH,
16. V.NASEEF, S/O.SEENATH,
17. V.ABDUL RASHEED,
18. V.SHAMSUDHEEN,
19. V.ISMAIL, S/O.SAKHEENA,
For Petitioner :SRI.A.MOHAMED MUSTAQUE
For Respondent :SRI.R.PARTHASARATHY
The Hon'ble MR. Justice PIUS C.KURIAKOSE
Dated :05/07/2007
O R D E R
PIUS C. KURIAKOSE, J.
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W.P.(C)No.32828 OF 2005
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DATED THIS THE 5th JULY, 2007
J U D G M E N T
Ext.P5 order passed by the learned Munsiff on an application
submitted by the petitioners-defendants 1, 2 and 5 in a suit for
partition presently facing final decree proceedings is under challenge.
The learned Munsiff dismissed the application observing that the
commissioner has not committed any material irregularity and that it is
open to the petitioners to substantiate their objections by examining
the commissioner at the time of enquiry.
2. Mr.M.K.Sumod, learned counsel for the petitioners invited my
attention to para.3 of the affidavit in support of Ext.P3 application
submitted by the petitioners as well as to Ext.P4 objections which were
filed by the respondents-plaintiffs to Ext.P3. The learned counsel
submitted that in Ext.P4, the averment in para.3 of the affidavit in
support of Ext.P3 had not been denied and therefore the learned
Munsiff could have very well allowed the application on the basis that
the averments are uncontroverted.
3. Mr.Parthasarathy, learned counsel for the respondents does
not agree. He would invite my attention to para.2 of Ext.P4 itself and
submit that previously the petitioners filed an application to set aside
WP(C)N0.32828/05
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the commission report and when that application came up for
consideration, the petitioners themselves submitted before the court
that it will suffice if the objections to the report are recorded. In this
way, the petitioners also virtually agreed that the question whether the
commissioner’s report should be accepted or should be remitted can
be considered after evidence is taken in the matter.
4. Having considered the rival submissions, I am of the view
that it cannot be said that Ext.P5 is vitiated to the extent of justifying
interference by this Court under the supervisory jurisdiction. In my
view, the petitioners do not have to be aggrieved about Ext.P5. I repel
the challenge against Ext.P5. But I make it clear that the learned
Munsiff will be bound to afford sufficient opportunity to the petitioners
for cross-examining the commissioner and for adducing whatever
other evidence they have for substantiating their objections to the
commissioner’s report. Once the entire evidence comes on record
regarding the commissioner’s report, the court below will hear the
parties on the acceptability of the report and pass an order. It is only
thereafter the learned Munsiff will take up the final decree application.
The Writ Petition is disposed of as above.
Tgl/- (PIUS C.KURIAKOSE, JUDGE) WP(C)N0.32828/05 -3- WP(C)N0.32828/05 -4-